Supreme Court Signals Strict Adherence to Foreigners Act for Rohingya Deportations, Final Hearing Set

New Delhi – The Supreme Court of India, during a recent hearing on May 8th, has reiterated its stance that Rohingya refugees, if determined to be "foreigners" under the Foreigners Act, 1946, are liable for deportation. This pronouncement came amidst urgent pleas from petitioners alleging recent detentions and deportations of Rohingya individuals, including women and children holding United Nations High Commissioner for Refugees (UNHCR) cards, despite the matter being sub-judice. The Bench, comprising Justices Surya Kant , DipankarDatta , and N Kotiswar Singh , has listed the batch of petitions for a final hearing on July 31, emphasizing a desire to definitively decide the rights of Rohingya refugees in India.

The hearing saw intense arguments, with the Court grappling with the interplay between India's domestic legal framework, its international obligations, and the dire humanitarian situation of the Rohingya community, widely regarded as one of the world's most persecuted minorities.

Allegations of Fresh Detentions and Deportations Spark Urgency

The proceedings were marked by serious allegations from petitioners' counsels, Senior Advocate Colin Gonsalves and Advocate Prashant Bhushan . They informed the Court, based on media reports and affidavits, that several Rohingya refugees, including those possessing UNHCR cards, were apprehended by police authorities from various locations in Delhi such as Madanpur Khadar , Shram Vihar, Budella, and Vikaspuri on May 6th and 7th. These individuals, purportedly taken for "verification of papers," were allegedly deported to Myanmar or transferred to detention centers like the one in Inderlok, Delhi, without due process.

Mr. Gonsalves expressed "shock" at these developments, terming them "alarming" and a "complete overreach of the Court," especially since the Court had, according to him, protected the Rohingya refugees for the past decade pending a final decision. Mr. Bhushan highlighted that an affidavit detailing these detentions, involving women, children, and even lactating mothers, was filed on May 5th. He further reminded the Court of Myanmar 's reluctance to accept the Rohingya s, whom it considers stateless.

One petition detailed that at least 69 stateless Rohingya refugees, all registered with UNHCR India and whose biometric data was already with local police and the Foreigners Regional Registration Office (FRRO), were detained. The plea alleged that women, pregnant women, children, and individuals with serious illnesses were held, with some reportedly transferred to the Inderlok Detention Centre without any detention order or explanation. Concerns were also raised about the lack of food, water, milk for newborns, and access to medical facilities for detainees.

Solicitor General (SG) Tushar Mehta , representing the Union of India, countered that such serious allegations must be formally placed on record through affidavits, to which Mr. Bhushan responded that such documentation had indeed been submitted.

The Legal Conundrum: Foreigners Act vs. International Conventions

A significant portion of the hearing revolved around the legal status of Rohingya refugees in India and the applicability of various legal instruments.

The Government's Position and the Primacy of the Foreigners Act: The Solicitor General consistently reiterated the Centre's stance: India is not a signatory to the 1951 UN Refugee Convention or its 1967 Protocol. Consequently, the UNHCR cards, while acknowledged, do not grant an automatic right to stay or preclude deportation under Indian law. The government's actions, SG Mehta asserted, are governed by the Foreigners Act, 1946.

Justice DipankarDatta heavily emphasized this point, stating, "If they are foreigners as per the Foreigners Act, then they have to be deported." He further observed, "They ( Rohingya s) are all foreigners and if they are covered by the Foreigners' Act, they will have to be dealt with as per the Foreigners' Act."

The April 8, 2021 Order: The SG and Justice Datta repeatedly drew attention to a Supreme Court order dated April 8, 2021. In that order, a three-judge bench had refused to grant interim relief in a plea challenging the detention of Rohingya refugees in Jammu and their proposed deportation to Myanmar . The 2021 order crucially observed: "...the rights guaranteed under Articles 14 and 21 [of the Constitution] are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e)." Since Article 19(1)(e) is available only to citizens, the Court implied that non-citizens do not possess a fundamental right against deportation.

Justice Datta noted that based on this 2021 order, there was "no denial that the petitioners cannot claim reliefs based on the UNHCR cards." When petitioners' counsels argued that the 2021 order was an interim one, Justice Datta opined that an interim order operates as res judicata in the same proceedings at a later stage. In light of this "self-speaking" order, the SG stated that no further directions were necessary at this stage regarding deportations.

Petitioners' Arguments on International Law and Constitutional Rights: Advocate Prashant Bhushan contended that the matter required a final hearing as it wasn't solely about the Refugee Convention. He argued that India is a signatory to the Genocide Convention and has obligations under customary international law, including the principle of non-refoulement, which prohibits the return of refugees to a country where they face serious threats to their life or freedom.

Senior Advocate Colin Gonsalves invoked the UN Convention Relating to the Status of Stateless Persons, emphasizing the international recognition of refugee rights, including those to food, shelter, and freedom from arbitrary detention. He also referred to the Supreme Court's judgment in NHRC v. State of Arunachal Pradesh , a case concerning Chakma refugees, to argue for protection. However, Justice Datta distinguished this, noting it was a Division Bench decision and therefore not binding on the current three-judge bench. He reiterated, "Right under Article 21 is there...but you don't have a right under Article 19(1) to settle!"

Court's Inclination Towards a Definitive Ruling

Justice Surya Kant expressed the Bench's preference for a conclusive judgment rather than further interlocutory orders. He stated, "We will hear the matters finally...it would be better that instead of passing interlocutory orders of any nature, we take up these matters and decide either way that - if they have a right to stay here, that should be acknowledged, and if they don't have a right to stay here, then they will follow the procedure and deport as per law."

This indicates the Court's intention to settle the long-standing legal questions surrounding the status and rights of Rohingya refugees in India.

When petitioners expressed apprehension about further deportations before the final hearing, Justice Kant noted the Solicitor General's assurance that any deportation would strictly adhere to the procedure established by law. SG Mehta affirmed, "We are fully bound by your Lordships' order!"

Broader Context and Previous Rulings

The current proceedings are part of a series of cases, including W.P.(C) No. 859/2013 (JAFFAR ULLAH AND ANR. Versus U.O.I AND ORS.) and connected matters, which also involve petitions seeking directions to detect and deport alleged Rohingya and Bangladeshi "infiltrators."

The Court's observations are consistent with its previous pronouncements. Justice Datta recalled a 2018 instance where a plea relating to the deportation of Rohingya refugees from Assam was dismissed by the apex court, though Mr. Gonsalves sought to distinguish that case by arguing it involved "migrants, not refugees."

Recently, the Supreme Court has also addressed ancillary issues concerning Rohingya refugees. In one instance, it disposed of a petition for admission of Rohingya refugee children in Delhi schools, directing them to first approach the concerned schools and then the Delhi High Court if admission was denied despite eligibility. In another Public Interest Litigation (PIL) in February seeking government benefits and school admissions, the Court affirmed that education should be provided to all children without discrimination but emphasized the need to first ascertain the residency status of the Rohingya families. This petition was later disposed of, with the Court reiterating its preference for children to approach schools directly.

The issue of deaths occurring in detention centers was also briefly raised by a counsel during the hearing, underscoring the grim conditions faced by some detainees.

Implications and The Path Ahead

The Supreme Court's upcoming final hearing on July 31 is poised to be a landmark one. Its decision will have profound implications for: 1. The Rohingya Community in India: Their immediate future, right to protection against refoulement, and access to basic amenities hang in the balance. 2. India's Refugee Jurisprudence: In the absence of a domestic refugee law, Supreme Court judgments often fill the legislative void. This case could further clarify the extent of constitutional protection (Articles 14 and 21) available to refugees and asylum seekers. 3. India's International Standing: The ruling will be closely watched internationally, given India's democratic credentials and its obligations under various human rights treaties it has ratified, such as the Genocide Convention, even if it's not a party to the Refugee Convention. 4. The Scope of the Foreigners Act: The Court's interpretation will reinforce the powers of the executive under this Act concerning the detention and deportation of non-citizens.

The legal fraternity will be keenly observing whether the final determination leans towards a strict interpretation of domestic law, prioritizing national sovereignty and immigration control, or carves out greater protections based on humanitarian considerations and broader constitutional principles, potentially reading aspects of non-refoulement into Article 21 for all persons, irrespective of citizenship. The petitioners' request for two hours to complete their arguments underscores the complexity and gravity of the issues at stake. As the matter heads for a final hearing, the fate of thousands of Rohingya refugees in India remains in a precarious legal limbo.